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Rajesh S/O Ganesh Uke vs State Of … on 14 February, 2018

1 apeal699.02

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.
699 OF 2002

Rajesh s/o Ganesh Uke,
Aged about 24 years,
Occupation – Labourer,
R/o Rambagh Zopadpatti,
P.S. Imambada, Nagpur. …. APPELLANT

VERSUS

State of Maharashtra,
through P.S.O. Imambada Police Station,
Nagpur. …. R ESPONDENT

__

Shri R.M. Patwardhan, Advocate for the appellant,
Shri N.R. Patil, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO
, J.

DATE OF RESERVING THE JUDGMENT
:
04-01
-201
8
DATE OF PRONOUNCING THE JUDGMENT :
14-02
-201
8

JUDGMENT :

Exception is taken to the judgment and order dated

05-12-2002 rendered by the learned 6th Ad hoc Assistant Sessions

Judge, Nagpur in Sessions Trial 62/2002, by and under which the

appellant-accused is convicted for offence punishable under Section

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342 of the Indian Penal Code (“IPC” for short) and is sentenced to

suffer rigorous imprisonment for six months and is further convicted

for offence punishable under Section 376(2)(f) of the IPC and is

sentenced to suffer rigorous imprisonment for ten years and to

payment of fine of Rs.1,000/-.

2. The child victim, then aged 8 years, was residing at

Panchnal Square, Imambada with her maternal aunt Yashodhara

Bhagwat since her birth. The father of the child victim Panjabrao

Gajbhiye is no more and her mother Gautamabai was residing at

Ambika Nagar, Manewada. The genesis of the prosecution lies in oral

report dated 24-5-2001 lodged at Imambada Police Station, Nagpur by

Sau. Yashodharabai (P.W.1). The gist of the said report (Exhibit 15) is

that at 10-00 p.m. or thereabout on 24-5-2001, a neighbour Pratiksha

Waghmare (P.W.3) disclosed, that two days ago between 1-00 p.m. and

3-00 p.m. when the child victim was playing in the courtyard, the

accused who resided in the neighbourhood took the child victim to his

house, he closed the door and removed the knicker worn by the child

victim, made the child victim to sleep on the cot, undressed and

forcibly inserted his penis in the vagina. The child victim disclosed to

Pratiksha Waghmare (P.W.3), that she was experiencing pain in vagina

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and when the accused committed sexual intercourse, due to some

sticky substance emitted from the penis, she experienced “sticky

feeling”. P.W.3 Pratiksha Waghmare told the informant that the child

victim did not disclose the incident to the informant since she feared

that her aunt (P.W.1) and uncle would beat her. The informant made

enquiries with the child victim, who though frightened narrated the

entire incident, the informant conveyed the same to her husband. The

informant also narrated the incident to the mother of the child victim.

The informant took the child victim to a private hospital for medical

examination. Dr. Padole opined that the child victim has suffered a

slight vaginal tear at the lower portion and that she was subjected to

sexual intercourse.

3. The oral report was reduced to writing and the printed

first information report is Exhibit 16 on the record of the trial Court.

On the basis of the said report, offence punishable under Sections 341,

342 and 376(2)(f) of the IPC was registered against the accused. The

child victim was referred to the Government Medical College Hospital,

Nagpur for medical examination. The clothes of the child victim and

the accused were seized. The accused was also medically examined.

The culmination of investigation led to submission of the charge-sheet

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in the Court of Judicial Magistrate First Class (Corporation Court 1),

Nagpur who committed the proceeding to the Sessions Court.

4. The learned Sessions Judge framed charge (Exhibit 7)

under Sections 342 and 376(2)(f) of the IPC. The accused abjured

guilt and claimed to be tried in accordance with law. The defence is of

total denial. The further defence is of false implication. According to

the accused, he was working with the maternal uncle of child victim.

Initially, he was paid regularly, however, later on the maternal uncle of

the child victim defaulted in making payment of the wages of the

accused and was threatened by the maternal uncle of the child victim

of false implication.

5. The child victim (P.W.2), who was aged 9 years when the

evidence was recorded, has deposed that she was studying in the 3rd

Standard and on the day of the incident was playing in the courtyard of

her maternal aunt. The accused held her hands and took her to his

house. The accused put bed-sheet on the cot, removed his knicker and

the knicker worn by the child victim and inserted his male organ in her

private part. The child victim shouted, the accused pressed her mouth

and threatened to beat her if the incident is disclosed. She did not

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disclose the incident to her maternal aunt (P.W.1) nurturing a fear that

she would be beaten by her maternal aunt and her mother. She

disclosed the incident to P.W.3 Pratiksha Waghmare who in turn

disclosed the same to her maternal aunt (P.W.1). The child victim was

taken to the hospital and then to the police station. The police referred

her for medical examination. She has identified the accused present in

the Court and the seized clothes which she was wearing on the day of

the incident.

In the cross-examination, it is elicited that the husband of

P.W.1 is a building contractor. The child victim admits that the accused

was an employee of the husband of her maternal aunt. She admits that

some days before the incident a quarrel took place between the

accused and her maternal uncle on the issue of payment of money. She

admits that her maternal uncle told the accused not to work with him.

She further admits that her maternal uncle threatened the accused that

he will file police case against the accused. She admits that at the

instance of the maternal uncle, her maternal aunt had lodged report at

the police station. The child victim categorically denies the suggestion

that the accused did not commit rape on her. The statement in the

examination-in-chief that the accused held her hands and took her to

his house, is brought on record as an omission. The statement that

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when the child victim shouted, the accused pressed her mouth and

threatened to beat her, is also brought on record as an omission.

6. P.W.1 Yashodhara Bhagwat, who is the informant, has

deposed consistently with the first information report. She has

deposed that when she enquired from the child victim about the

information received from Pratiksha Waghmare, the entire incident was

narrated by the child victim. P.W.1 has deposed that she took the child

victim to Dr. Padole and then lodged the report (Exhibit 15). She has

proved the seizure panchanama (Exhibit 17) while which the clothes

worn by the child victim were seized.

She has denied the suggestion that a dispute arose

between her husband and the accused on the issue of payment of

wages. She has denied the suggestion that her husband threatened the

accused of false implication, if the accused demanded wages. It is

elicited in her cross-examination that the disclosure was made by P.W.3

Pratiksha Waghmare on 25-5-2001 and not on 24-5-2001 as is stated in

the report. Few omissions are brought on record vis-a-vis the oral

report. The omissions, however, do not touch the core and substratum

of the report. The oral report though dated 24-5-2001, was lodged on

25-5-2001 at 10-00 a.m., as is revealed from the printed first

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information report (Exhibit 16).

7. P.W.3 Sau. Pratiksha Waghmare has deposed that when she

was talking with a lady, the child victim said that she has a husband.

P.W.3 asked the child victim who is her husband and the child victim

pointed her finger towards the accused who was sitting near the

latrine. P.W.3 inspected the private part of the child victim and noticed

swelling. The child victim was then taken to the hospital by P.W.1, is

the deposition.

In the cross-examination, she was given suggestions to

elicit that there was a dispute between the accused and the husband of

P.W.1 on the issue of payment of wages. P.W.3 has, however, disclaimed

any knowledge about such dispute.

8. P.W.4 Dr. Rajesh Gajbhiye, who was then attached with the

Government Medical College Hospital, Nagpur as Lecturer in

Gynecology, has deposed that when he examined the child victim, the

hymen was found torn.

In the cross-examination, it is elicited that it is not

recorded in the medical certificate (Exhibit 24), who narrated the

history of the incident. P.W.4 admits that in case of rape on minor,

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there should be redness, inflammation or tear of the private parts of

the victim. P.W.4 admits that except torn hymen he did not notice any

other injury on the private parts of the child victim. P.W.4 admits that

he did not mention the age of the tear of hymen in the medical

certificate (Exhibit 24). It is elicited that tear of hymen is possible due

to various reasons.

9. P.W.5 Bhila Bacchav is the Investigating Officer. It is

elicited in the cross-examination that there is overwriting over the

dates in printed first information report (Exhibit 16). However, he

asserts that the report was lodged on 25-5-2001. The Investigating

Officer was asked about the delay in lodging the report and in response

he states that enquiries revealed that since the child victim was

frightened, she did not disclose the incident to her maternal aunt and

her husband and the child victim disclosed the incident to a third

person. It is elicited that the statement of the child victim was not filed

alongwith charge-sheet. The explanation given is that the statement

was not filed due to inadvertence. However, he denies the suggestion

that he did not record the statement of the child victim. He admits that

no date is mentioned on the top of the first page below the signature

on the statement of the child victim. This again is attributed to

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oversight.

10. Shri R.M. Patwardhan, the learned counsel for the accused

would submit that in the light of the admissions elicited in the cross-

examination of the prosecutrix, it would be extremely unsafe to base

the conviction on her testimony. Shri R.M. Patwardhan invites my

attention to the following observations of the Apex Court in

K. Venkateshwarlu vs. State of Andhra Pradesh, (2012)8 SCC 73:

“9. Several child witnesses have been relied upon in this
case. The evidence of a child witness has to be subjected to
closest scrutiny and can be accepted only if the court comes
to the conclusion that the child understands the question put
to him and he is capable of giving rational answers (see
Section 118 of the Evidence Act). A child witness, by reason
of his tender age, is a pliable witness. He can be tutored
easily either by threat, coercion or inducement. Therefore,
the court must be satisfied that the attendant circumstances
do not show that the child was acting under the influence of
someone or was under a threat or coercion. Evidence of a
child witness can be relied upon if the court, with its
expertise and ability to evaluate the evidence, comes to the
conclusion that the child is not tutored and his evidence has
a ring of truth. It is safe and prudent to look for
corroboration for the evidence of a child witness from the
other evidence on record, because while giving evidence a
child may give scope to his imagination and exaggerate his
version or may develop cold feet and not tell the truth or may
repeat what he has been asked to say not knowing the
consequences of his deposition in the court. Careful
evaluation of the evidence of a child witness in the
background and context of other evidence on record is a must
before the court decides to rely upon it.”

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Shri R.M. Patwardhan also relies on a Division Bench judgment

of this Court in the State of Maharashtra Vs. Chatish Arunachalam

Das Ors, 2015 ALL MR (Cri)2961 and in particular paragraphs 12,

13 and 14 which read thus:

“12. P.W.7 is the victim girl Alina. At the time of recording of
her testimony she was nine years of age. This child witness
has narrated the incident in great detail. This witness in her
examination in chief has narrated the various acts
committed by the Respondents in her testimony. In her cross
examination, this witness has in unequivocal terms admitted
that P.W.1 i.e. her grandfather and P.W.6 i.e. her
grandmother were instructing her for giving the evidence.
She has further admitted that P.W.1 i.e. the grandfather was
instructing her as to what is to be stated before the Court
and what should not be stated before the Court. She has
further admitted that she has stated the names of the ‘rapist’
before the police. She has further admitted that a quarrel
took place between Respondent No.1 and P.W.1
Arunachalam because Respondent No.1 was coming to the
house after consuming liquor and Respondent No.1 used to
pick up quarrels on some trifle issues. She has further
admitted that P.W.1 i.e. her grandfather was fed up due to
the activities of Respondent No.1 and therefore P.W.1
Arunachalam started residing at garage. This witness in
paragraph 11 of her evidence has admitted that she was
participating in the competition of race and had stood first.
She was also participating in the competition of long jump
and high jump and was scoring good marks in the long and
high jump.

13. It further appears from the record that initial statement
of P.W.7 i.e. the victim girl Alina was recorded by police on
30 October 2009. However, the First Information Report is
recorded on 3 November 2009. The prosecution has not given
any explanation for the delay of four days in recording the
First Information Report and it appears to us that the

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recording of the First Information Report at the instance of
P.W.1 Arunachalam which is at Exhibit 18 is an afterthought
and filed with malafide intention.

14. The defence has elicited various omissions in her cross
examination. What is surprising to note here is that this
child witness has stated in her cross examination that she
has read the word ‘rape’ in book and in her earlier part of
the testimony she has described the sexual assault as ‘galat
kaam kiya’ as a synonym to the term ‘rape’. In view of the
admissions given by this witness, in our considered opinion,
this child witness was tutored by P.W.1 Arunachalam to give
evidence as per his wish before the Court and we find that
her evidence is not reliable and trustworthy.”

I am respectfully bound by the enunciation of law in said

judgments. However, the pivotal issue is, whether the admissions

elicited in the cross-examination of the prosecutrix destroy the core and

substratum of the testimony. It would also be necessary to analyze the

evidence to ascertain whether the testimony of the child witness is

uncorroborated. The prosecutrix who was aged 9 years when the

evidence was recorded, has indeed admitted that some days before the

incident a quarrel took place between the accused and her maternal

uncle on account of money and that the accused threatened her

maternal uncle that money will be recovered. She admits that her

maternal uncle threatened the accused that he will file police case

against the accused. She admits that at the instance of maternal uncle

her maternal aunt had lodged report at the police station. Be it noted,

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that the prosecutrix emphatically denied the suggestion that she was

not taken by the accused to his home. She denies the suggestion that

she was not sexually ravished by the accused. The version of the

prosecutrix that she disclosed the incident to PW 3 Pratiksha has gone

unchallenged. A general suggestion is given that the prosecutrix is

deposing falsehood at the instance of her maternal aunt. Having

scrutinized the evidence of the prosecutrix with due caution, the

conscious of the Court is satisfied that she is not a tutored witness. The

evidence of the prosecutrix is corroborated by the evidence of PW 3

Pratiksha to whom the prosecutrix disclosed that she has a husband,

and when asked who was her husband, she pointed her finger towards

the accused. The evidence is further corroborated by the disclosure

made by the prosecutrix to her maternal aunt PW 1 Yashodhara. The

medical evidence on record is that the hymen was torn. The absence of

any physical injury on the genitalia of the prosecutrix, is not decisive.

11. Shri R.M. Patwardhan would submit that the First

Information Report is lodged belatedly. Delay in lodging the First

Information Report is not necessarily fatal to the credibility of the

prosecution version. The prosecutrix did not disclose the incident to

her maternal aunt fearing that she would be scolded or beaten. The

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incident came to light when she told PW 3 that she has a husband and

pointed out towards the accused. It is then, that after PW 3 informed

PW 1 Yashodhara and the entire incident was revealed by the

prosecutrix. The two days delay in lodging the report, in the factual

matrix, is duly explained.

12. The defence is of false implication. Although it is admitted

by the prosecutrix that there was a monitory dispute on the issue of

wages between her maternal uncle and the accused, PW 1 Yashodhara

has denied the suggestion that there was such dispute between her and

husband and accused. Arguendo, even if it is assumed, that there was

dispute, it would be rare, if at all, that a 8 to 9 year old child would be

used as a tool to wreak vengeance. The dispute was, according to the

defence, on the issue of non payment of wages. It is highly improbable

that such a relatively trivial issue would persuade the maternal aunt

and maternal uncle of the prosecutrix to falsely implicate the accused.

In the non permissive Indian society, sexual ravishment is unfortunately

a stigma. The relatives of the prosecutrix would be well aware that the

ghost of such stigma haunts the girl child through out her life. I am not

persuaded to hold that the defence is probabilized even on the

touchstone of preponderance of probabilities, particularly since in my

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view, the evidence of the prosecutrix is confidence inspiring.

(i) The appeal is sans merit and is rejected.

(ii) The accused is in custody in view of the order dated

30.11.2017. He shall continue to remain in custody to undergo

the reminder of the sentence.

(iii) The accused shall be entitled to set of under section 428 of

the Code of Criminal Procedure.

(iv) The bail bond of the accused shall stand cancelled.

(v) The appeal is disposed of in the above terms.

JUDGE

RSB

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